WASHINGTON, DC — Today, the Department of Justice (DOJ) begins implementing case completion quotas as part of the performance review process for immigration judges, requiring them to finish 700 cases per year or face disciplinary action. The American Immigration Lawyers Association (AILA), in voicing its opposition to these quotas, renewed its call for the creation of an independent Article I immigration court.

AILA President Anastasia Tonello stated, “After gutting the authority of immigration judges to continue, administratively close, terminate or dismiss cases through a series of precedent-setting decisions, today the Attorney General implements a policy that will force judges to choose between guaranteeing justice or losing their jobs. With a clock constantly ticking over their heads, judges cannot possibly issue well-reasoned decisions that carefully weigh the facts and applicable law in each person’s case. This policy further undermines due process and the principle of judicial independence and will subject immigrants who come to the court expecting fairness to an assembly line system.”

AILA Executive Director Benjamin Johnson urged action, “One very deep flaw in our immigration court system is that the Attorney General, who oversees immigration prosecutions in federal courts, also has the power to decide the law and rules judges must follow and has the power to fire those who don’t comply. That’s why Congress can delay no longer in conducting rigorous oversight of the courts and establishing an independent immigration court system outside of the control of the DOJ. More than 1,000 AILA members are submitting a letter to Attorney General Sessions calling for the creation of this court under Article I of the Constitution, which would safeguard judicial integrity and impartiality while protecting America’s core values. Justice demands nothing less.”

The Trump administration recently launched an office that will focus on identifying immigrants who are suspected of cheating to get their green cards or citizenship and seek to denaturalize these individuals. USCIS Director Francis Cissna announced that his agency is hiring several dozen lawyers and immigration officers to review these cases.

In September 2016, the DHS Office of the Inspector General (OIG) released a report finding that USCIS granted U.S. citizenship to at least 858 individuals ordered deported or removed under another identity when, during the naturalization process, their digital fingerprint records were not available. OIG recommends that ICE finish uploading into the digital repository the fingerprints it identified, and that DHS resolve these cases of naturalized citizens who may have been ineligible. Further, the report found that fingerprint records were missing from hundreds of thousands of cases for a variety of reasons.

For many years, the DOJ focused its efforts to strip immigrants of their citizenship on suspected war criminals who lied on their immigration paperwork, most notably former Nazis. And, USCIS and DOJ pursued cases as they arose, but not through a coordinated effort.

USCIS Director Cissna stated that “he hopes the agency’s new office in Los Angeles will be running by next year but added that investigating and referring cases for prosecution will likely take longer.”

The Los Angeles Times reports that a USCIS team in Los Angeles has been reviewing more than 2,500 naturalization files for possible denaturalization, focusing on identity fraud and willful misrepresentation. More than 100 cases have been referred to the Department of Justice for possible action.

Proving a Bona Fide Marriage is Critical

Immigration law created the idea of conditional residence to prevent fraudulent or sham marriages. A sham marriage is when at least one of the parties of a marriage entered into the marriage for the purpose of circumventing immigration laws to falsely acquire immigration benefits. Fake marriages for the purposes of obtaining a green card can result in harsh penalties, including jail time and steep fines. A finding of fraud will also most likely eliminate the possibility of getting approved on future petitions and have un-waivable immigration consequences far into the future. This law obligates U.S. Citizenship and Immigration Services (USCIS) to scrutinize your application for permanent residence with a period of conditional residence to make sure your relationship is everything you said it was.

The burden of proof is on the couple to establish their bona fide marriage. Smart couples start preparing for the I-751 petition as soon as they get married. If you or your spouse recently became a conditional resident through marriage, you can begin building your case.

Warning Signs There Isn’t a Bona Fide Marriage

According to the Adjudicators Field Manual (AFM), Section 21.3, a guide used by USCIS officers to make determinations on immigration cases, there are several factors that could be warning signs of possible marriage fraud. Some of these factors include:

Large disparity of age;

Inability of petitioner and beneficiary to speak each other’s language;

Vast difference in cultural and ethnic background;

Family and/or friends unaware of the marriage;

Marriage arranged by a third party;

Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States;

Discrepancies in statements on questions for which a husband and wife should have common knowledge;

These factors alone do not mean that you don’t have a bona fide marriage. But if one of the above criteria applies to you, you should expect additional scrutiny and more questions from USCIS. For example, a large disparity in age is not a reason to deny your petition. But it is reason for USCIS to look for solid proof that you have a bona fide marriage.

Another example would be living separately from your spouse. Certain employment, particular military service, is a reasonable explanation for not living together in the same home. This can make it more difficult to prove a bona fide marriage.

Documents Used to Prove a Bona Fide Marriage

A marriage certificate proves the legality of a marriage, but it doesn’t prove that the marriage is genuine for the purposes of removing the conditions on residence. USCIS wants to confirm that both parties entered the marriage in “good faith” and not for the purpose of circumventing immigration laws. When filing Form I-751, you must also submit copies of as many documents as you can to establish this fact and to demonstrate the circumstances of the relationship from the date of marriage to the present date. The documents can include but are not be limited to the following examples:

Evidence of Cohabitation

Generally, a married couple will live together. Although cohabitation is not always the case, it’s an indicator and good evidence to establish the couple has a bona fide marriage. The following are examples of acceptable documents to be used as evidence of cohabitation:

Property insurance agreements, statements, or cards showing the same address

Health and life insurance statements showing the same address

Correspondence from friends, family, or businesses showing the same address

Affidavits from friends, family, neighbors, and landlords attesting to cohabitation

Evidence of Raising Children Together

Proof of a child born into the marriage is compelling evidence of a genuine marital relationship. But it’s not necessary that you had children born into the marriage or have any children at all. Adopted or step-children raised in the household may also help establish the bona fide marriage. The following are examples of acceptable documents to be used as evidence of raising children together:

Birth certificates showing both spouses as parents

Adoption certificates showing both spouses as parents

Evidence of a relationship with children or step-children (photos, vacation itineraries, school records, affidavits from friends, family, and teachers)

Medical records evidencing an ongoing pregnancy

Evidence showing the non-related parent as an emergency contact for a step-child on school records, doctor’s records, etc.

Evidence of Commingling of Finances

Married couples will generally combine financial resources. This commingling of finances of finances is strong evidence of your good faith marriage. Even if you prefer to keep your finances separate, you may have some evidence of commingling that you may not realize. The following are examples of acceptable documents to be used as evidence of commingling of finances:

Bank statements for joint checking, savings, and credit card accounts

Voided and cancelled checks for joint accounts

Statements for joint loans or loans where one spouse is a co-signor for the other spouse

Copies of bank statements from separate accounts and cancelled checks showing that you share jointly in your financial responsibilities and big purchases (for example, if each spouse pays half of rent from a separate account or if each spouse paid one half toward the purchase of a car)

Life insurance policies, wills, and trusts, designating your spouse as a beneficiary

Evidence of Intimacy

In most cases, couples filing Form I-751 are new to marriage. They’re in the “honeymoon phase” and are probably enjoying life experiences together. There are probably plenty records to demonstrate this. The following are examples of acceptable documents to be used as evidence of intimacy:

Photos from the couple’s wedding, honeymoon, vacations, family dinners, holidays, etc. (Recommendation: List the names of any other individuals in the photos as well as the approximate date and location.)

Travel itineraries and hotel bookings from joint vacations or trips

Photos from joint vacations or trips, particularly trips abroad to visit family members

Tickets to events you both attended or plan to attend

Receipts for any gifts you have purchased for each other

Cards from friends and family congratulating you on your wedding, anniversary, or other joint life events

Evidence that each spouse has met or communicated with the other spouse’s parents and relatives such as photos, letters, cards, or emails

Phone and text message records showing that you and your spouse communicate on a regular basis

Social media records such as screen shots of Facebook pages, posts and Twitter messages that show you spending life events together

Affidavits

Consider asking your friends, family, neighbors, and employers to attest to the genuineness of your marriage. Affidavits help to support other types of evidence listed above. You may supply affidavits sworn to or affirmed by people who have known both of you since your conditional residence was granted and have personal knowledge of your marriage and relationship. (Such persons may be required to testify before an immigration officer as to the information contained in the affidavit.) You must submit the original affidavit, and it must contain the following information regarding the person making the affidavit: his or her full name and address; date and place of birth; relationship to you or your spouse; and details explaining how the person acquired his or her knowledge. For more information, read

Although we’ve listed numerous examples of evidence to prove that you and your spouse have a bona fide marriage, don’t limit yourself to the above documents. Include any other documents that you consider relevant to establish that your marriage was not entered for the purpose of evading U.S. immigration laws. When collecting your own documents, think about the activities and obligations that a typical married couple will experience. If you can provide evidence of these life events experienced together, you help to build your case of a good faith marriage and a successful I-751 petition. Likewise, this list is not a guarantee that your case will be approved.

In its latest attack on asylum seekers, U.S. Citizenship and Immigration Services (USCIS) issued new guidance to asylum officers that will make it much harder for victims of domestic violence and gang violence to obtain asylum. The guidance follows a strongly worded opinion known as “Matter of AB” issued by Attorney General Jeff Sessions last month.

In order to establish eligibility for asylum, an applicant must have a reasonable fear of persecution on account of a protected ground: race, religion, nationality, political opinion, or membership in a particular social group. Membership in a particular social group is not defined in the law or regulations. It is instead shaped by case law, which is where asylum claims relating to domestic and gang violence have developed over time.

However, the guidance issued by USCIS to all employees attempts to severely undercut those claims, noting:

In general… claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence or gang violence committed by non-government actors will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution.

USCIS Updates Policy Guidance for Certain Requests for Evidence and Notices of Intent to Deny WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) today posted a policy memorandum (PDF, 113 KB) (PM) that provides guidance to USCIS adjudicators regarding their discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility. This updated guidance is effective September 11, 2018 and applies to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received aer that date. Due to preliminary injunctions issued by courts in California and New York, this new PM does not change the RFE and NOID policies and practices that apply to the adjudication of DACA requests. “For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits,” said USCIS Director L. Francis Cissna. “Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.” The 2013 PM addressed policies for the issuance of RFEs and NOIDs when the evidence submitted at the time of filing did not establish eligibility. In practice, the 2013 PM limited denials without RFEs or NOIDs to statutory denials by providing that RFEs should be issued unless there was “no possibility” of approval. This “no possibility” policy limited the application of an adjudicator’s discretion. The policy implemented in this guidance restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate. This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence.

USCIS will continue issuing statutory denials when appropriate without first issuing an RFE or NOID when the applicant, petitioner, or requestor has no legal basis for the benefit/request sought, or submits a request for a benefit or relief under a program that has been terminated. If all required initial evidence is not submitted with the benefit request, USCIS, in its discretion, may deny the benefit request for failure to establish eligibility based on lack of required initial evidence. Examples of filings that may be denied without sending an RFE or NOID include, but are not limited to: Waiver applications submitted with little to no supporting evidence; or Cases where the regulations, the statute, or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no such submission. For example, an Affidavit of Support (Form I-864), if required, was not submitted with an Application to Register Permanent Residence or Adjust Status (Form I-485). This PM updates Chapters 10.5(a) and 10.5(b) of the USCIS Adjudicator’s Field Manual and contains an “additional considerations” section. The policy in this “additional considerations” section is not new, and AILA Doc. No. 18071380. (Posted 7/13/18) 7/13/2018 USCIS Updates Policy Guidance for Certain Requests for Evidence and Notices of Intent to Deny | USCIS https://www.uscis.gov/news/news-releases/uscis-updates-policy-guidance-certain-requests-evidence-and-notices-intent-deny 2/2 is nearly identical to the policy contained in the superseded 2013 PM. For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), and Facebook (/uscis). Last Reviewed/Updated: 07/13/2018